| In civil cases of trade secrets,the distribution of the burden of proof is one of the core issues related to the outcome of the case.The 2019 version of the Anti-Unfair Competition Law has added Article 32 related to the distribution of the burden of proof in civil cases of trade secrets.The text of this article has the problem that the type of the burden of proof is not clear.If the first paragraph of Article 32 is understood as the inversion of the burden of proof,it will violates the principle of who claims who provides evidence in the civil procedure law,and there may be some malicious litigation.Therefore,even if the legislator literally intends to invert the burden of proof of confidentiality and misconduct,it should still be clear that Article 32 should not be understood as the inversion of the burden of proof,but as the transfer of the burden of proof.In addition,Article 32 also has the problems that it is difficult for the obligee to completely solve the difficulty of providing evidence for confidentiality and infringement of trade secrets,as well as the problem of vague words such as "preliminary evidence" and "reasonable indication that trade secrets have been infringed".Different courts’ different understanding of the above words may lead to two extreme phenomena in judicial practice: excessively reducing the burden of proof of the obligee or requiring the obligee to use the original standard of proof.Based on the rational application of Article 32 of the Anti-Unfair Competition Law and the purpose of preventing excessive protection,on the premise of clarifying that the obligee of trade secrets still has the burden of proof for confidentiality,and based on the original intention of legislators trying to reduce the obligee’s burden of proof,the proof standard of confidentiality should be appropriately reduced,For example,although the obligee is required to submit "preliminary evidence",the obligee is not required to submit the actual evidence of confidentiality.At the same time,the obligee is allowed to provide evidence on the three constituent elements of confidentiality,value and confidentiality.In the specific identification,the factors such as the illegality of the behavior and the difficulty of obtaining information can be considered,and the dominant evidence rule can be adopted to comprehensively identify in combination with the actual situation of the case,so as to actively apply the transfer of responsibility for presenting evidence,The defendant shall prove that the information is known to the public.Paragraph 2 of Article 32 should be understood as the transfer of responsibility for providing evidence.The "preliminary evidence" only needs to be proved to the lowest level,and the "reasonable" should be conservatively interpreted.When determining whether the infringement of trade secret is established,it should still adopt the identification standard of high probability.Since Article 32 is difficult to completely solve the problem of difficult proof for the obligee of trade secrets,the court should strengthen the application of evidence preservation and act injunction to obtain evidence for the infringement of trade secrets.The rebuttable presumption mechanism can be introduced into the cases of technical trade secrets related to manufacturing methods,and then the restrictions on the contents of manufacturing methods can be relaxed slowly and appropriately,so as to expand the scope of application of the rebuttable presumption mechanism. |
